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Will Vs. Trust – Which Is Better For Estate Planning?

If you’re considering nominating individuals to inherit your assets, the question about Will vs. Trust, which is better for estate planning, must be ringing the bell in your mind. Both are excellent ways to pass on the estate, but which is more reliable?

The answer is Trust—it’s a more reliable and safer option.

While a Will is easy to create and can effectively transfer your estate, it isn’t protected from creditors and the government. The priority of the court in the probate case is to settle the debt and taxes, not to pass on the estate. 

Only after these obligations are cleared will the court follow the Will’s instructions to distribute assets to beneficiaries. Another problem is that this entire probate process takes at least eight to twelve months. So, Trust is clearly the winner;  let’s understand it in detail!

What Is A Will In Estate Planning?

A Will is a document that outlines what happens to a person’s estate after their death. This method of transferring assets has been used for centuries. You can provide detailed guidance on how your property should be passed on, to whom, and under what conditions.

In addition, a Will can be easily created using online tools but must comply with state laws. It’s important to include witness signatures along with your own and nominate an executor (not legally required but crucial for a smooth transfer of asset rights).

If the Will meets the requirements and is created correctly, the executor presents it in probate court within 30 days of the testator’s death. Afterward, the probate process begins, and the court distributes the estate according to the instructions in the Will.

Pros and Cons of Will

Here are the pros and cons of a Will. They’ll help you understand better whether a Will is the right option for you or not.

Pros

  • Easy to create: Creating a Will is simple compared to a Trust. You only need to understand the requirements and can create a Will using online tools.
  • Helps transfer assets: A Will allows you to specify how your estate should be distributed, ensuring your assets go to the people you want after you die.
  • Easy to change: Wills are easier to amend than Trusts. You or your lawyer can modify the conditions in the Will without any issue.
  • Cost-effective: Drafting a Will is generally less expensive than creating a Trust, making it a more accessible option for many people.

Cons

  • Long probate process: Probate cases can take a long time, often six to eight months to a year or even more in some cases.
  • Not safe from govt and creditors: Debts and taxes will be settled from the assets mentioned in the Will.
  • Can be contested: A Will can be easily contested, potentially leading to legal disputes and delays.

What Is Trust In Estate Planning?

A Trust is a legal framework that involves three parties: the grantor, trustee, and beneficiaries. It’s different from a Will because it makes the trustee responsible for managing assets and transferring the estate.

Once you put the assets in the trust’s name, they won’t be your assets anymore. They’ll be trust property, which protects them from creditors and taxes. Creditors and the government can demand taxes and debts from your property, not from the one under the trust’s name. 

There are two main types of trusts: revocable and irrevocable. An irrevocable trust cannot be changed without beneficiary approval, providing a secure structure. However, a revocable trust allows for easy term modification whenever necessary.

Pros and Cons of Trust

Now, let’s discuss the pros and cons of creating a Trust for estate planning.

Pros

  • Safe option: Assets in a Trust are safe from creditors. Creditors can’t get anything from assets held in Trust, keeping them safe from debts or claims.
  • No probate: Assets placed in a Trust don’t have to go through the probate process. When someone passes away, the trustee can distribute the assets directly to beneficiaries as outlined in the Trust.
  • Offer privacy: Trusts offer more privacy than Wills. Will becomes public records in the probate case, exposing details of the deceased’s assets, while the Trust remains confidential.
  • Unlimited control: Trust provides unlimited control over asset management and distribution. The grantor can nominate trustees to oversee the Trust and establish specific rules and conditions for asset transfer.

Cons

Not easy to create: Setting up a Trust isn’t simple. You need to hire a lawyer to help you create one, decide who will be the trustee, and set the conditions for how the Trust will work.

Initial setup cost: Creating a Trust involves paperwork and hiring a lawyer, so there’s an initial cost. You’ll need to budget for these expenses when considering a Trust for your estate planning.

Is Trust Better Than A Will?

In terms of safety and privacy, Trust is a lot better than a Will. One of the biggest benefits of having a Trust is that it’ll be effective as a legal entity the day it’s created, while a Will only becomes active after the death of its creator.

Additionally, a Trust offers control over the distribution process of assets. For example, instead of passing on an estate, you can specify that beneficiaries receive regular income distributions from the Trust for a certain period of their lifetime.

If the Trust is created to support children’s education after your death, you can set conditions for it. You can ensure the money is used only for tuition, books, and fees. That way, you ensure assets go exactly where you want them to, with no guesswork involved.

Final Thoughts – Will Vs. Trust

So, is creating a Will the right choice for you? You can create a Will to transfer the assets but remember that it’s not the best option for privacy and asset safety. 

If you want privacy and safety, you should go for Trust. However, if you want to control and be responsible for your assets until your death, creating a Will is the right choice. By creating a Trust, you lose control over the assets in most cases, especially in an irrevocable Trust.

We hope you’ve now found the answer to whether a Will or Trust is better for estate planning. If you need more help, please contact our law firm. We’ll gladly arrange a consultation with an experienced estate planning lawyer to discuss your options in more detail.

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Dustin MacFarlane’s primary focus is on Elder Law and protecting families and seniors. He is a Certified Specialist in Estate Planning, Trust, and Probate Law by the State Bar of California Board of Specialization — a rare distinction.

Prior to becoming an attorney, Mr. MacFarlane worked in the Long Term Care industry. After becoming licensed to practice law in January of 2009, Elder Law quickly became his focus. Seeing the need during his former career, Mr. MacFarlane pursued Elder Law as a primary area of practice.

By Dustin MacFarlane

Dustin MacFarlane’s primary focus is on Elder Law and protecting families and seniors. He is a Certified Specialist in Estate Planning, Trust, and Probate Law by the State Bar of California Board of Specialization — a rare distinction.

Prior to becoming an attorney, Mr. MacFarlane worked in the Long Term Care industry. After becoming licensed to practice law in January of 2009, Elder Law quickly became his focus. Seeing the need during his former career, Mr. MacFarlane pursued Elder Law as a primary area of practice.